Mormons in a Post-Obergefell World

A few thoughts I’ve had about living in a post-Obergefell world:

The first thing: the decision, on a practical level, doesn’t change anything for most of us. It certainly doesn’t for me. And I don’t say that because I’m straight. I live in Illinois, where same-sex marriage was instituted legislatively over a year ago. The only substantive difference Obergefell makes in Illinois is that couples who marry here don’t stop being married when they move to Indiana. And, as Cynthia pointed out, the vast majority of Mormons are in a similar boat: most of us (in the U.S., anyway) live in places where same-sex marriage was just as legal on June 25 as it was on June 26. 

Second, marriage will survive. It’s survived bigger changes than this; up until the 19th century, common law jurisdictions appear to have taken quite literally the biblical assertion that a married couple become “one flesh.” Under the legal doctrine of coverture, a married woman basically didn’t have legal rights or obligations apart from her husband. That is, a married woman couldn’t, among other things, hold property, make contracts, or keep her own wages (if she were permitted to work). In some cases, she didn’t even have legal liability for her bad acts, because the law assumed she was acting on behalf of her husband.[fn1]

Coverture slowly disappeared over the course of the 19th century; in the United States, individual states started passing Married Women’s Property Acts as early as 1839, though three states didn’t do so until the end of the century. The United Kingdom passed its Married Women’s Property Act in 1882, giving married women separate legal existence.

I get that, intuitively, allowing two men or two women to marry seems like a bigger change in marriage. But the Married Women’s Property Acts changed the number of legal parties in a marriage from one to two. To me, that feels like a gigantic change, and one that marriage survived.

Moreover, it doesn’t much matter what we think about same-sex marriage; like it or hate it, the Supreme Court has ruled. And ultimately, it doesn’t matter if the Court was right or wrong. As Justice Jackson explained in 1953,[fn2] “We are not final because we are infallible, but we are infallible only because we are final.”

That is to say, we can argue until we’re blue in the face about whether the U.S. should have legal same-sex marriage but, at this point, it doesn’t matter.

Which leads me to my third thought: Obergefell marks both an opportunity and a responsibility for us.

I mean, the church has spent a lot of time focused on its (and our) obligations to strengthen families; one of its principle arguments against same-sex marriage was that it would harm families, which we were under divine stricture to “maintain and strengthen.”

Now we get to put our money where our mouth is. Same-sex marriage is here, and it’s here to stay. If we were to drop our strengthen-the-family rhetoric, if we were to stop working to promote the well-being of families, if we make a hard pivot toward preserving religious liberty, we belie our assertion that our opposition to same-sex marriage was all about the family. (Note that I’m not saying to ignore religious liberty—I believe that’s an important goal, too.)

And the thing is, I don’t think our church leaders were lying. I think they are concerned about family in our culture. And family, frankly, is taking some hits. Marriage is facing serious problems right now—for a lot of reasons, it works really well for the college-educated and affluent, but it works really poorly for the poor and the less-educated. If we don’t have to focus—if we can’t focus—on same-sex marriage, we can transfer some of our energy to help figure out how to make marriage a more viable institution.[fn3]

—

[fn1] Though that was the law, it may not have been intuitive or uncontroversial to everybody. In Oliver Twist, Mr. Bumble famously objects to the idea that he is responsible for his wife’s acts:

‘It was all Mrs. Bumble. She would do it,’ urged Mr. Bumble; first looking round to ascertain that his partner had left the room.

‘That is no excuse,’ replied Mr. Brownlow. ‘You were present on the occasion of the destruction of these trinkets, and indeed are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction.’

‘If the law supposes that,’ said Mr. Bumble, squeezing his hat emphatically in both hands, ‘the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience—by experience.’

[fn2] (in what, for some reason, is one of the clearest memories I have from my Constitutional Law class)

[fn3] Note that family certainly should not replace God as the object of our worship; while family is an important institution, it is not our sole aspiration. That said, religion isn’t solely here to draw us to the next life—it is also an instrument we can, and should, use to improve this one. So I think family is a legitimate area of focus for the church, just not the principle one.